Opinion
6 Div. 371.
January 8, 1929.
Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge.
Curry Brown was convicted of manufacturing whisky, and he appeals. Affirmed.
These charges were refused to defendant:
"6. The court charges the jury that no matter how strong the circumstances if they can be reconciled with the theory that some other person may have done the act charged then the defendant is not shown to be guilty by that high degree of proof the law requires."
"13. The court charges the jury that in weighing the testimony of the witnesses O. M. Campbell and Tom Logan you may look to the fact, if it be a fact, that said witnesses expect to receive a reward if the defendant is convicted under the indictment in this case."
J. T. Johnson, of Oneonta, for appellant.
The burden of proving venue beyond reasonable doubt was upon the state. Charge 14 should have been given. Code 1923, § 5895: Mayhall v. State, 22 Ala. App. 223, 114 So. 361; Patterson v. State, 156 Ala. 62, 47 So. 52; Gaither v. State, 21 Ala. App. 165, 106 So. 348; Granberry v. State, 184 Ala. 5, 63 So. 975. The state is not entitled to a conviction on hearsay testimony as to the county line. Pate v. State, 20 Ala. App. 358, 102 So. 156. Charge 6 has been many times approved, and should have been given. McKenzie v. State, 19 Ala. App. 319, 97 So. 155; Brown v. State, ante, p. 290, 115 So. 68. The solicitor should not, in propounding questions, assume a state of facts as true without any proof of same. Blevins v. State, 204 Ala. 476, 85 So. 817; Collum v. State, 21 Ala. App. 220, 107 So. 35; Driver v. Pate, 16 Ala. App. 418, 78 So. 412. Charge 13 correctly states the law, and should have been given. Shepard v. State, 20 Ala. App. 627, 104 So. 674.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
Refused charge 14 was covered by the court in his oral charge in the first paragraph thereof, wherein the court explicitly charged on the question of venue and as to the burden of proof.
Refused charge 6 was properly refused on authority of Moody v. State, 21 Ala. App. 30, 104 So. 875; Ex parte Hill, 211 Ala. 311, 100 So. 315.
Refused charge 13 was covered by the court in his oral charge. Moreover, this requested charge gives undue prominence to a part of the testimony.
The evidence as to the guilt of defendant was in conflict, and therefore the affirmative charge was properly refused.
We have examined the many exceptions reserved to questions and answers of witnesses. Most of these appear captious and without merit, and as to all of them a sufficient answer is that they present no new questions and were without injury to this defendant. Some of the questions propounded by the solicitor should not have been allowed. It is error for the examining attorney, even on cross-examination, to assume a state of facts as being true which have not been testified to and to make that assumption a basis for questions asked a witness; but when the answer of the witness is favorable to defendant there are no grounds for prejudicial error.
We have examined all of the exceptions reserved and find no prejudicial error. The question was one of fact fairly presented to a jury.
Let the judgment be affirmed.
Affirmed.